Gadd v Australia Business Executive Investments Pty Ltd [2019] NSWDC 798

Gadd v Australia Business Executive Investments Pty Ltd [2019] NSWDC 798

The court found that no cash repayments were made by the defendants to the plaintiff; that Mr Alexander-Erber signed the Deed of Guarantee and Indemnity and was properly made a guarantor; that demands for repayment were validly made by text and email to the guarantors and to the debtor company via its sole director; and that the Deed did not displace the guarantees contained in the originating loan agreements. As a result, the plaintiff was entitled to judgment for the total outstanding sum against both defendants and to costs on an indemnity basis from the date of a Calderbank offer.

Jurisdiction
Australia
Judgment Date
05 November 2019
Procedural Posture
Civil / Judgment at First Instance
Outcome
Judgment for the plaintiff.
Legal Topics
['loan Agreements' 'personal Guarantees' 'repayment of Loans' 'demand Requirements' 'indemnity Costs']
['contract Law' 'guarantee and Indemnity'] ['loan Agreements' 'personal Guarantees' 'repayment of Loans' 'demand Requirements' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil / Judgment at First Instance

Legal Issues

  1. 1 ['Did the defendants make any, and what, cash repayments to Mr Gadd in January 2018?' 'Was the Deed of Personal Guarantee signed by Mr Alexander-Erber?' 'Was any obligation of guarantee in the loan agreements or Deed of Personal Guarantee ineffective because of a failure to make a required demand?' 'Were any of the guarantees ineffective by reason of the form of the guarantee or because the Deed replaced the earlier guarantees?']

Ratio Decidendi

The court found that no cash repayments were made by the defendants to the plaintiff; that Mr Alexander-Erber signed the Deed of Guarantee and Indemnity and was properly made a guarantor; that demands for repayment were validly made by text and email to the guarantors and to the debtor company via its sole director; and that the Deed did not displace the guarantees contained in the originating loan agreements. As a result, the plaintiff was entitled to judgment for the total outstanding sum against both defendants and to costs on an indemnity basis from the date of a Calderbank offer.

Court Disposition

Judgment for the plaintiff.

Orders

  • ['Judgment for the plaintiff against the defendants in the sum of $244,249.75.' "Defendants to pay the plaintiff's costs of the proceedings with those costs incurred from 5 December 2018 to be payable on the indemnity basis."]